State Consumer Disputes Redressal Commission
Pushpa Rani vs Dr. Mohinder Singh, Hospital & Dialysis ... on 31 March, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1161 of 2010.
Date of Institution: 02.07.2010.
Date of Decision: 31.03.2014.
1. Pushpa Rani Wd/o Sh. Om Parkash S/o Sh. Rajinder Singh;
2. Rishi Raj S/o Late Sh. Om Parkash;
3. Jagdeep Raj S/o Late Sh. Om Parkash;
All residents of House No.3972/1, Nita Street, Mehna Chowk,
Bathinda.
.....Appellant/Complainants.
Versus
1. Dr. Mohinder Singh, Hospital & Dialysis Centre, near Pukhraj
Cinema, GT Road, Bathinda, through its Prop./MD/Partner.
2. Dr. Mohinder Singh of Hospital & Dialysis Centre, near Pukhraj
Cinema, GT Road, Bathinda.
...Respondents/OPs
First Appeal against the order dated
13.05.2010 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
Present:- Sh. Inderjit Singh, Advocate, counsel for the appellants.
Sh. Binderjit Singh, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Smt. Pushpa Rani and others, appellants/complainants (In short "the appellants") have filed this appeal against the order dated First Appeal No.1161 of 2010 2 13.05.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), asserting that the respondents are running the hospital near Pukhraj Cinema, G.T. Road, Bathinda, claiming the facility of dialysis and attending emergency cases for saving the life of the patients and have advertised so in the public. Going through the advertisements and the assurances about good treatment, husband of appellant no.1 and father of appellants no.2 & 3, namely Sh. Om Parkash went to the respondents, with the complaint of breathlessness.
3. It is the duty of a doctor, first to diagnose the ailment and then advise the patient about the risks involved and to start the treatment after getting consent of the patient. After check-up, Sh. Om Parkash was admitted by the respondents in their hospital as indoor patient on 30.07.2009 and remained there upto 07.08.2009. Respondent no.2 diagnosed the ailment of Sh. Om Parkash as COPD, Brochial infection, septicemia etc. It means blockage of chest breathlessness and there was blood poisoning and presence of pathogenic bacteria in the blood and this condition characterize by chills, fever peteche and abscess formation. The respondent gave treatment after some tests prescribed to their compounder, who sent the blood etc. to get the test of TLC and DLC which was got conducted from Dr. Sheena's Path Lab. on 30.07.2009 and the report showed that the patient was suffering from jaundice. The patient Sh. Om Parkash could not get relief and his condition became critical during the stay in First Appeal No.1161 of 2010 3 the hospital of the respondents. There was severe infection and puss and the lungs were not working properly. The respondents failed to control the ailment and he became critical day by day and the respondents did not get any second opinion from the doctor.
4. The respondents again got the tests conducted from Gursimran Clinical Laboratory, which is being run by the respondents. The TLC test showed 18000 CMM against the normal range of 4000- 10000 which means that the infection was uncontrollable and the respondents did not get the tests conducted on 06.08.2009 about WBC which showed 10.9 against normal range of 4 to 10 which was alarming. Ultimately, said Om Parkash was referred to Dr. Gursewak Singh of Gursewak Gastro Care Pragma Hospital, Bhatti Road, Bathinda. He got some tests conducted from Pragma Lab. investigation and as per the report, the TLC of the patient was 18100 against the normal range of 4000-11000 and DLC was also excess. From the report, Dr. Gursewak Singh diagnosed the problem of Sh. Om Parkash as COPD and ARF, which means acute renal failure & Sepsis which means presence of bacteria and their toxins in the body usually following the infection in the wound which kills tissue and produces puss and he again referred said Sh. Om Parkash to the respondents. After seeing the report, the respondents did not care about the critical condition of said Sh. Om Parkash and they were negligent in not providing the treatment and ultimately, Sh. Om Parkash died in the hospital of the respondents on 10.08.2009.
5. The respondents were negligent in treating Sh. Om Parkash and they stopped providing the treatment to him in the night of 08.08.2008 when he was brought to the hospital of the respondents First Appeal No.1161 of 2010 4 and he died due to their negligence, as the infection was not controlled. Sh. Om Parkash became critical during the stay in the hospital of the respondents and Dr. Gursewak Singh refused to admit him due to his critical condition and he sent back the patient to the hospital of the respondents.
6. The respondents never told about the critical condition of the kidneys which were damaged during the stay of patient Sh. Om Parkash in respondent hospital and this fact was told by Dr. Gursewak Singh on 08.08.2009. The respondents never tried to give dialysis to the patient Sh. Om Parkash to save his kidneys. The respondents did not tell about the dangerous infection and puss in the body nor they were able to control the dangerous infection, jaundice, typhoid or to remove the choking of the chest which aggravated the conditions of lungs and deteriorated the respiratory system. The appellant suffered lot of pain, agony and they are entitled to compensation of Rs.15.00 lacs from the respondents alongwith interest and compensation.
7. The District Forum, at the time of admission of the complaint, sought the report of the Medical Board as per the law laid down in case "Martin F. D'Souza Vs. Mohd. Ishfaq", 2009(2) RCR (Civil)-1 (SC) and relying upon the report, dismissed the complaint in limine.
8. Aggrieved by the impugned order dated 13.05.2010, the appellants have come up in appeal.
9. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties. First Appeal No.1161 of 2010 5
10. The appeal was filed on the grounds that there was sufficient evidence to prove the negligence and the District Forum, without summoning the record and without issuing any notice to the respondents, sent the case for expert opinion and dismissed the complaint. The order under appeal is not sustainable and is liable to be set aside.
11. We have considered the version of the appellants as given in the appeal as well as respective submissions advanced on behalf of the parties and have minutely scrutinized the entire record.
12. The order passed by the District Forum is palpably wrong and is against the latest law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme in case "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.", 2010 (2) RCR (Civil)-929, declared that the judgment rendered in "Martin F. D'Souza Vs. Mohd. Ishfaq"
(Supra) as per-incuriam. The District Forum has ignored the law laid down in the above authority. The Hon'ble Supreme Court in its latest judgment in case "A. Srimannarayana Vs. Dasari Santakumari & Anr.", 2013 (2) RCR (Civil)-305, reiterated its view as laid down in case V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr."
(supra) and held that the complaint can be registered, without seeking any opinion of the expert. The judgment in the case "Martin F. D'Souza Vs. Mohd. Ishfaq" (Supra) has been declared as per-incuriam by the judgment of "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr." (supra) and observed in Para-9 and Para-10 as follows:-
"9. The aforesaid observations leave no manner of doubt that the observation in Jacob Mathew (supra) were limited only with First Appeal No.1161 of 2010 6 regard to the prosecution of doctors for the offence under Section 304A IPC.
10. The aforesaid observations and conclusions leave no manner of doubt that the judgment rendered by a two-Judge Bench of this Court in the case of Martin F.D'Souza (supra) has been correctly declared per-incuriam by the judgment in V. Kishan Rao (supra) as the law laid down in Martin F. D'Souza (supra) was contrary to the law laid down in Jacob Mathew (supra)."
13. In view of above discussion as well as the latest law laid down by the Hon'ble Supreme Court, there was no need, nor the law requires that at the time of issuing of notice, expert opinion of any doctor or board should be taken. The order passed by the District Forum is not, at all, sustainable and is liable to be set aside.
14. Accordingly, the appeal filed by the appellants is accepted and the impugned order under appeal dated 13.05.2010 passed by the District Forum is set aside. The case is remanded back to the District Forum, with the directions that the District Forum shall proceed with the complaint, keeping in view the law laid down by the Hon'ble Supreme Court in the above authority.
15. Record of the District Forum alongwith copy of the order be sent to the District Forum forthwith, on receipt of which, the District Forum shall procure the presence of the parties and shall decide the complaint on merits, after affording due opportunities to both the parties of filing written version, leading evidence etc. First Appeal No.1161 of 2010 7
16. The arguments in this appeal were heard on 24.03.2014 and the order was reserved. Now the order be communicated to the parties.
17. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member March 31, 2014.
(Gurmeet S)